Developing province's northwest could pollute more across border and Americans are armed with new court rulings. Last in a series.

Christopher Pollon is a widely published freelance journalist and Tyee contributing editor. His website is here. Follow him on Twitter @C-Pollon.

This article was produced by Tyee Solutions Society in collaboration with Tides Canada Initiatives (TCI). TCI neither influences nor endorses the particular content of TSS' reporting. Other publications wishing to publish this story or other Tyee Solutions Society-produced articles, please see this website for contacts and information.

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In one final, uncharacteristic act as Governor of Alaska, Sarah Palin fired off a letter to Gordon Campbell in 2009, calling for British Columbia to stop polluting the salmon-rich Taku River, which is shared by both the province and Alaska.

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"In order to protect downstream water quality and assure the continued health of the valuable Taku River fisheries, the state of Alaska feels other means must be promptly implemented for remediating the Tulsequah Chief," she wrote.

Palin's words fell on deaf ears. Pollution from the Tulsequah Chief mine has flowed for 50 years and continues today, as successive owners of the property try and fail to restart the mine. Two different water treatment schemes have been deployed and abandoned, the most recent in June 2012. (See a map of the Tulsequah Chief mine below in this story.)

The Tulsequah Chief is more than a rogue mine mired in bad luck. It foreshadows what could be coming to northwest B.C. and southeast Alaska over the next few decades after BC Hydro completes its Northwest Transmission Line (NTL) in 2014.

The NTL promises to eventually make at least five big mines a reality, all situated in the watersheds of big salmon rivers like the Stikine and Taku that are shared by Alaskans, British Columbians, and some of the world's healthiest remaining runs of salmon.

In southeast Alaska, a region better known as the Panhandle, concerns are growing that the NTL will trigger what many are calling an "Enbridge effect." Like British Columbia's vulnerability to plans to pipe Alberta bitumen to the B.C. coast, Alaskans now face the unwelcome prospect of downstream river and air pollution created by mines powered from B.C.'s new Hydro grid, without sharing any of the economic gains they might create.

"Alaska salmon fisheries are huge, tourism is huge, and any threat to rivers is a threat to a way of life," says Tadzio Richards, a researcher and campaigner with Rivers Without Borders, a Washington State-based environmental group focused on protecting northern transboundary rivers. "What flows down the river to Alaska is the risk, not the benefit."

The question is: What can Alaska do to avoid paying the cost?

Fighting for the Taku

The current predicament on the Taku illustrates just how ill prepared U.S. and Canadian governments are to deal with transboundary impacts from multiple B.C. mines. The Tulsequah Chief was a relatively tiny mine, developed and abandoned during the late 1950s by Cominco (which later merged with Teck Corp. of Vancouver). Since then the Canadian federal government has issued at least four orders to clean up the mess, yet acid drainage from the mine continues to run into the Tulsequah and Taku Rivers.

In 2011, three Democratic Alaska state officials -- Alaska Senator Dennis Egan, Representative Cathy Muñoz, and Representative Beth Kerttula -- heeded calls by southeast Alaska salmon fishermen to take action on the Tulsequah Chief. Frustrated by the continued water pollution and plans to reopen the mine, they created a task force to examine the issue of resource development on the Taku. It published its findings in March 2012.

The task force found a huge disconnection between Alaska state and federal officials and their Canadian counterparts coordinating the "risk management" of impacts from the Tulsequah Chief. "There are currently no funded state or international processes to coordinate such risk evaluations," its final report read.

The report also found gaps in baseline data for water quality (including naturally occurring acid leaching from rock), for fish, mammals, and "other biological communities" on the Taku River.
The Alaska state body responsible for coordinating mining projects (the Department of Natural Resources' Office of Project Management and Permitting) does not have dedicated funding to address Canadian mine projects. "Without dedicated funding, coordination on Canadian projects can only exist at a low or informal level," the task force concluded.

Nathan Cullen, the NDP Member of Parliament for Skeena/Bulkley Valley (see map of his riding here), says relations between B.C. and Alaska are informal but good right now. Still, "electrification" of the northwest will bring the Alaska and B.C. governments closer than ever before, he says.

"Alaska looks to Washington and northern B.C. might look more to Ottawa, when we should more often be looking at each other."

Alaska forced to quit mine talks

Approximate location of the Tulsequah Mine site starred on map.

U.S. and Alaska state agencies participate in environmental assessments of B.C. mines by invitation of the B.C. Ministry of Environment. That happened most recently on the KSM mine (map) in the Unuk Valley, and Schaft Creek (map) in the lower Stikine watershed.

In the latter case, Calgary's Copper Fox Metals is proposing to build one of the largest copper-gold-molybdenum-silver mines in the world, processing at least 65,000 tonnes/day for 15 years not far from the lower Stikine and just across the border from Wrangell and Petersburg, Alaska. The U.S. Department of Interior had participated in an advisory working group examining the mine until it was forced to withdraw from the group's activity by internal budget constraints earlier this year.

"[D]ue to staffing shortfalls, we have been unable to review project-related documents for the Schaft Creek Mine or to participate in any project-related technical... meetings," wrote Pamela Bergmann, the U.S. department of the Interior's Regional Environmental Officer based in Anchorage by email.

Bergmann added that the same issues forced Alaska to leave a similar table looking at the Red Chris mine (map), a copper/gold project widely expected to be the first NTL-powered project in production after 2015.

Red Chris is located in the so-called "Sacred Headwaters," an area where the headwaters of the three biggest northwest salmon rivers -- the Nass, Stikine and Skeena -- all rise in close proximity to each other. British Columbians and Alaskans alike rely on all three, the latter for lucrative commercial salmon fisheries in the north Pacific Ocean.

Alaska's absence from the assessment of either mine sacrifices an opportunity to understand, and perhaps lessen, their potential impacts downstream.

Transboundary treaties 'not likely' to help

Two years ago, frustrated by the situation on the Taku, Beth Kerttula, the Democrat House minority leader in the Alaska State Legislature in Juneau who had kickstarted the Taku task force, decided to invoke the Canada-U.S. Boundary Waters Treaty to protect Alaska's side of the river.

Created over a century ago in 1909, the treaty includes commitments that "neither country should cause water pollution in its water which will cause injury to health or property in the other country."

Kerttula soon discovered the treaty could not help. "We tried to deal with it through the Boundary treaty, and tried to involve Canada more as well, but it was incredibly complicated and didn't work," she says.

DREAMS OF OPENING THE NORTH

BC Hydro's Northwest Transmission Line is just the latest in a long line of expensive, taxpayer-funded infrastructure schemes designed to unlock the mineral resources of the north.

Many of these have revolved around connecting Alaska to the lower 48, most notably by rail. In 1977, BC Rail attempted to extend its track into the rugged northwest corner of B.C. all the way to Dease Lake, as part of WAC Bennett's wider dream of connecting B.C. to Alaska, the Yukon, and Northwest Territories.

As recently as 2005, Alaska championed the so-called Alaska-Canada Rail link -- a plan to connect the Alaska Railway to CN's northern-most railhead in northern B.C. The line hoped to tap vast undeveloped iron ore and coal deposits in the Yukon and B.C. The $11-billion plan died in 2005 when its champion, Alaska Governor Frank Murkowski, was defeated by Sarah Palin.

Both schemes were pushed by individual politicians intent on legacy creation. The NTL is little different. The 344-kilometre power line was dead until B.C. premier Gordon Campbell resurrected it in 2008, spurred by an aggressive lobbying campaign led by the Mining Association of B.C. Proponents predicted about 10,000 jobs and $15 billion in northwest investment if the line was ever built -- projections the B.C. government has since adopted as its own.

A 2009 federal contribution of $130 million -- from the Conservative's so-called Green Infrastructure Fund -- provided the final push needed to make the NTL a go.

-– C.P.

That's because the treaty is not enforceable by ordinary citizens in a court of law, says Noah Hall, an environmental law professor at Michigan's Wayne State University Law School and an expert in transboundary law. The treaty is essentially a forum for the U.S. and Canadian federal governments to study issues and make joint commitments about what to do about areas of conflict. It cannot be invoked by one party alone for relief from a specific problem, like pollution on the B.C. side of the Taku leaching into salmon habitat on the Alaska side.

That said, the treaty could still be effective in addressing cross border pollution. Both federal governments could agree to make a "joint reference," ordering the binational panel that administers the treaty to identify all potential threats to the environment, public health, and communities. A large body of authoritative research would be generated, pinpointing where the risks and challenges lie.

"This [research] would motivate the province of B.C. to do a better job of preventing pollution from within its borders," says Hall. "And if B.C. doesn't do that, it would give Alaska and its residents quite a bit of ammo for a legal fight."

Hall thinks the chances of both countries agreeing to such a process are virtually nil however. "What are the chances that Ottawa and Washington D.C. would get involved in a way that opens themselves up to the objective criticisms and studies of the [treaty]? It's not likely."

Headed to court?

If B.C. mines do damage Alaskan rivers and salmon, the state's more likely course of action will be to litigate a suit in U.S. courts. Hall says ongoing U.S.-based litigation against a B.C. smelter on the transboundary Columbia river provides a "perfect example" of what could come to pass in the northwest.

Since 2004, the Confederated Tribes of the Colville Reservation and Washington State have been suing Vancouver-based mining company Teck over the century-long releases of pollution into the Columbia river from its smelter at Trail, B.C.

Teck, a descendent of the same corporate entity that originally mined the Tulsequah Chief, has historically maintained its smelter waste was either not present on the U.S. side of the Columbia River, or if it was, such waste was "inert." But in September 2012, the company conceded that it had indeed released pollution (alleged to include mercury, lead and arsenic) into the Columbia.

"We feel confident the federal court will find that U.S. cleanup laws apply to Teck," said Jim Pendowski, manager of Washington State's Department of Ecology in a press release. "Making American taxpayers bear the burden of clean up costs doesn't make sense."

The case is ongoing. A hearing was held in U.S. federal district court in Yakima, Washington in October, to determine whether Teck will be held liable under U.S. law. A decision is expected before the end of the year.

Shockwaves across the northwest

Regardless of which way that decision goes, the threat of being brought before U.S. courts could send an investment chill across the NTL-powered northwest of the near future.

Canada and the U.S. are separate countries with different laws, but that is no barrier to using domestic courts in either country to sue cross-border polluters, says Noah Hall.

"The basic environmental laws with respect to pollution are pretty much the same in the U.S. and Canada," he says. "If somebody's pollution is going over the border and destroying your property or injuring you personally, under well-established legal principles in both countries, you can get relief in court, and that's what many litigants do."

That's what the Colville Tribes did in Washington State. It could be just the beginning, as the B.C. government and mining industry continue to predict
the NTL will spur a northwest mining renaissance generating $15 billion in investment.

Tadzio Richards says transboundary legal cases brought by disgruntled Alaskans have the power to send shockwaves through the northwest, turning the "Enbridge effect" on its head.

"If you pollute in B.C. and it pollutes the Alaska side, you could be financially liable for that," says Richards. "The potential cost could be huge."

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